UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

NANCY ANAYA-SMITH, next of kin of 

Michael Brian Smith, deceased, 

 Plaintiff Counter Defendant - 

 Appellant, 

v. 

FEDERATED MUTUAL INSURANCE 

COMPANY, 

 Defendant Counterclaimant - 

 Appellee. 

No. 21-6113 

(D.C. No. 5:20-CV-00565-D) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges. 

_________________________________ 

This appeal has been abated pending the Oklahoma Supreme Court’s answers 

to the questions of state law we certified to it on April 25, 2022. The Oklahoma 

Supreme Court has now ruled, and its answers require us to reverse the district 

court’s grant of summary judgment and to remand for further proceedings. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with Federal 

Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 23, 2024

Christopher M. Wolpert 

Clerk of Court

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This appeal involves an insurance coverage dispute between Appellant, Nancy 

Anaya-Smith, and Appellee, Federated Mutual Insurance Company (“Federated”). 

Ms. Anaya-Smith’s husband, Michael Smith, was killed while a passenger in a car 

owned by his employer, Fixtures & Drywall Company of Oklahoma (“FADCO”), and 

driven by his coworker, Duane Alan Clark, as part of a job assignment. While 

traveling on I-35 in Oklahoma, the car was involved in a high-speed, single-car 

accident. Mr. Smith sustained serious injuries from the accident and later died at the 

hospital. 

At the time of the accident, FADCO had an insurance policy through 

Federated. The policy included up to $1,000,000 of liability coverage and an 

umbrella policy that provided an additional $6,000,000 of liability coverage per 

accident. These liability limits cover an “insured,” which includes FADCO and 

“anyone else while using with [FADCO’s] permission a covered ‘auto’ [FADCO] 

own[s], hire[s] or borrow[s],” subject to certain exceptions. App. at 102. FADCO 

also purchased uninsured motorist (“UM”) coverage up to $1,000,000 for “directors, 

officers, partners, or owners of [FADCO] and family members who qualify as 

insureds.” Id. at 195. FADCO rejected in writing UM coverage for all other insureds. 

At the time of the accident, Mr. Smith was not a director, officer, partner, or owner of 

FADCO, or a family member of any of those individuals. 

Because Mr. Smith was on the job and traveling in an employer-owned 

vehicle, the exclusive remedy provision of the Oklahoma Workers’ Compensation 

Act barred Mr. Smith and his widow from suing Mr. Clark or FADCO and benefiting 

Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 2
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from FADCO’s liability coverage and umbrella policy. Okla. Stat. tit. 85A, § 5. Thus, 

Ms. Anaya-Smith submitted a claim, seeking to recover on behalf of her late husband 

under FADCO’s UM policy. When Federated denied the UM claim, 

Ms. Anaya-Smith brought a bad faith claim against Federated in the United States 

District Court for the Western District of Oklahoma. Federated submitted a 

counterclaim for a declaratory judgment that FADCO’s insurance policy does not 

provide UM coverage for Mr. Smith because (1) the vehicle was not an uninsured 

vehicle at the time of the accident, and (2) the policy’s provision of UM coverage to 

only FADCO’s directors, officers, partners, owners, and their family members who 

qualify as insureds does not violate Oklahoma’s UM coverage statute, Okla. Stat. tit. 

36, § 3636. 

Before the district court, the parties brought cross-motions for summary 

judgment. In addition to the claim that UM coverage was unavailable to Mr. Smith, 

Federated argued, in the alternative, that if § 3636 requires named insureds to 

purchase UM coverage for all or none of the insureds, the imputed UM coverage 

would be the minimum $25,000 per person and $50,000 per occurrence in the statute, 

not the $1,000,000 coverage limit FADCO purchased for its directors, officers, 

partners or owners, and their family members who qualify as insureds. 

The district court granted in part and denied in part Federated’s motion and 

denied Ms. Anaya-Smith’s motion. The district court held (1) the vehicle was an 

uninsured vehicle at the time of the accident because the driver is immune from tort 

liability under the exclusive remedy provision of the Oklahoma Workers’ 

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Compensation Act, and (2) FADCO’s policy providing UM coverage for directors, 

officers, partners, owners, or family members of such individuals who qualify as 

insureds but rejecting UM coverage for other insureds does not violate § 3636. The 

district court did not reach the question of whether the imputed coverage for insureds 

who are not directors, officers, partners, owners, or family members of such 

individuals would be the $1,000,000 limit FADCO purchased for its directors, 

officers, partners, owners, and their family members who qualify as insureds or the 

$25,000 per person and $50,000 per occurrence minimum established by the statute. 

See Okla. Stat. tit. 36, § 3636. 

Ms. Anaya-Smith appealed and moved to certify a question of law to the 

Oklahoma Supreme Court concerning § 3636. We granted the motion to certify with 

modifications to the proposed question, and the Oklahoma Supreme Court did not 

further modify the certified questions. The certified questions were as follows: 

1. Where Mr. Smith was injured and killed as a passenger in an 

employer-owned vehicle that had $7,000,000 of liability insurance and 

has not shown the claim would exceed $7,000,000, but where Mr. Smith 

cannot recover under the policy because the worker’s compensation 

exclusive remedy provision of [Okla. Stat. tit. 85A, § 5] bars suit against 

the employer, does that vehicle qualify as an uninsured motor vehicle 

within the meaning of [Okla. Stat. tit. 36, § 3636(C)]? 

2. Does [Okla. Stat. tit. 36, § 3636] permit FADCO, a corporate named 

insured, to purchase uninsured motorist coverage for its directors, 

officers, partners, owners, and their family members who qualify as 

insureds, but to reject uninsured motorist coverage for other persons who 

qualify as insureds? 

3. If FADCO’s insurance policy with Federated violates [Okla. Stat. tit. 

36, § 3636], does the legislative intent or purpose of § 3636 impute the 

$1,000,000 uninsured motorist coverage policy limit FADCO purchased 

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for its directors, officers, partners, owners, and their family members who 

qualify as insureds or [does] the $25,000 per person/$50,000 per accident 

minimum uninsured motorist coverage policy limit in § 3636 [apply] to 

the other persons who qualify as insureds? 

Anaya-Smith v. Federated Mut. Ins. Co., --- P.3d ----, 2024 WL 2151104, at *1 

(Okla. May 14, 2024) (fifth and sixth alterations in original). 

The Oklahoma Supreme Court answered two of our certified questions on May 

14, 2024. The Oklahoma Supreme Court first held that “a tortfeasor, who is immune 

from suit due to the exclusive remedy of workers’ compensation, may be an 

uninsured motorist as a matter of Oklahoma law,” and that the vehicle in which 

Mr. Smith was a passenger qualifies as an uninsured motor vehicle under § 3636(C). 

Id. at *3–*6. The Oklahoma Supreme Court next held that, once a corporate insured 

purchases a UM policy under a general automotive liability policy, it cannot elect to 

purchase UM coverage for some individuals who qualify as insureds under the policy 

but not for others pursuant to § 3636. Id. at *6–*9. Finally, the Oklahoma Supreme 

Court declined to answer the third certified question because “the question of what 

amount would be payable under the Federated policy was not decided by the federal 

district court and has not been briefed by the parties.” Id. at *10. 

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The ruling from the Oklahoma Supreme Court has resolved this appeal. 

Accordingly, we REVERSE the district court’s entry of summary judgment for 

Federated and REMAND the case for further proceedings not inconsistent with this 

court’s order or the opinion of the Oklahoma Supreme Court. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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